Nyirenda v Universal Industries (IRC MATTER 145 of 2015) [2019] MWIRC 13 (13 August 2019)

THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY I. R. C. MATTER NUMBER 145 OF 2015 BETWEEN PETER NYIRENDA, si5. nen epi ecnnmsnaitttinenanoe aii cw cede eG emmmcrgyhWhwenme APPLICANT UNIVERSAL INDUSTRIES 0:cpc5si.-ncncqnyeeiannenou xed coonnaiG iit onwanwseliibanee RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MISS CECILIA T. NYIRENDA, EMPLOYERS’ PANELIST MR ALAXENDER LUNGU, EMPLOYEES’ PANELIST APPLICANT/PRESENT/UNREPRESENTED MR NEWOD T. K CHILENJE, RESPONDENT REPRESENATATIVE MR. HEZRONE MHONE, COURT CLERK JUDGEMENT 1. BACKGROUND The applicant commenced the present action alleging unfair dismissal by the Respondent and therefore claiming reinstatement and or damages. 2. THE EVIDENCE 2.1 APPLICANT'S EVIDENCE In his evidence in brief, the applicant stated that he was employed by the Respondent on 9th September, 2014 as a Garden Boy and was based at the Respondent’s Mzuzu Branch. He went on to say that on 15! August, 2015, the Respondent terminated the applicant’s services without citing any reason and without according him a right to be heard. He further said that the Respondent recruited two other people at his post after he was told to wait home to be recalled if work will be available. During cross — examination, he stated that he did not report back to his work place because the Respondent had already recruited other people and as such there was nothing for him as he was replaced. 2.2 RESPONDENT'S EVIDENCE In its evidence, the Respondent's witness, Mr Chilenje stated that the applicant was recruited on 24 January, 2015 to slash around the company’s factory and also as a garden boy and he was released on 14'% August, 2015 when it was a slack period pending a recall if need be. He went on to say that the applicant was released with other people and when the slack period was over, his colleagues were called back and reported for duties but the applicant was no where to be seen as he is too mobile. As such his colleagues started working and some were put on permanent basis. He disputed that the applicant started working for the Respondent in September, 2014 and they have custody of records of his employment with the respondent. He further said that the company has a practice of calling casual labourers and on if the applicant had reported for duties, he could have been assisted and taken board since where he was living is close to the resoondent'’s factory and as such he was abie to see his colleagues working. 3. ISSUES The issues for determination before this court are (i) Whether the applicant was engaged as a casual labourer or as a permanent employee; (ii) If he was a permanent employee, whether he was unfairly dismissed or not. 4. THE APPLICABLE LAW Section 3 of the Employment Act and section 2 (1) of the Labour Relations Act defines an employee as a person who offers his services under a contract of employment or any person who performs work or services for another person for remuneration or reward on such terms and conditions that he or she is in relation to that person in a position of economic dependence, and under an obligation to perform duties for that person more closely resembling the relationship of employee than of an independent contractor. Thus, it will be noted that the definition makes no distinction between a permanent employee and one on probation or a casual worker or a seasonal worker, and that the Employment Act does not define who is a casual worker. In Kandoje V. Malawi housing Corporation, Matter No. IRC. 233 of 2003, the court noted this gap and referred to other jurisdictions for a definition. The court held that England and Wales have defined casual worker as those workers who are free to decide whether or not to work, and those they work for can decide whether or not to hire them, To this end, it is submitted that this lack of mutual obligations means that most casual workers will not be employees. Sees Sikwese, R, Labour Law in Malawi, Lexis Nexis (2010) p. 67. The learned author went on to say as follows: “Furthermore, employers are not obliged to grant sick leave or any employment benefit such as severance allowance, overtime, notice pay or leave. They are only obliged to pay wages for actual work performed. casual workers are disposable just like a commodity” The learned author then suggests reform in this area by, inter a lia, providing for the definition of casual employees in the law and that it should have safeguards to protect workers and also to have a limit within which a worker can be engaged to perform casual labour. 5. FINDINGS AND CONCLUSIONS From the discussion of the law above and its application to the facts of the present case, it is found that the applicant herein was a casual worker / labourer and not an employee of the respondent. Such being the case, the employer reserved the right to decide to hire him or not after the slack period. Moreover, the applicant failed to avail himself to the Respondent's office to enquire about his being rehired after noticing that his colleagues were reengaged. To that end, this court has no other option but to dismiss the applicant's claims in their entirety. However, a reading of the record from the prehearing conference indicates an admission by the Respondent's Representative that it owes the applicant a six days’ wages and it is ready and willing to pay him. So, if the same was not paid, it should be paid forthwith. Any dissatistied party has the right of appeal to the High Court within 30 days from the date here under as per the provisions of sections 65 of the Labour Relations Act MADE This 13'" Day of August, 2019 at Mzuzu. H/H K. D MLUNGU DEPUTY CHAIRPERSON ea _ MISS C. T. NYIRENDA (MISS) EMPLOYERS’ PANELIST Aish MR ALEXANDER LUNGU EMPLOYEES’ PANALIST